HON’BLE MR. SUBHASH CHANDRA,     PRESIDING MEMBER

For the Appellant                 Mr Sujith Jaiswal, Advocate

                                        Mr Ashkrit Tiwari, Advocate

For the Respondent              Mr Fanish Kumar Rai, Advocate

ORDER

1.      This First Appeal filed under Section 51(5) of the Consumer Protection Act, 2019 (for short “the Act”) challenges the order dated 13.01.2023 of the Telangana State Dispute Redressal Commission, Hyderabad (in short, the ‘State Commission’) in Consumer Complaint No. 23 of 2022, wherein the State Commission passed an ex-parte order directing the Appellant herein, inter alia, to complete the construction of subject flat and to register the same in the name of Respondent herein and give possession of the flat to them with occupancy certificate within 60 days; pay monthly rent of Rs.10,000/- from October, 2019 till the date of compliance of the first direction and pay a compensation of Rs. 5 Lakhs with costs of Rs. 50,000/- to the Respondents.

2.     We have heard the learned counsel for the parties and carefully considered the material on the record.

3.     The Appellant’s case is that Appellant Company is registered under the Companies Act, 1956 engaged in development of lands and buildings. Appellant states that it had undertaken development and construction of residential apartment in project named "SMR Vinay Iconia" in Kondapur Village, Serilingampalli Mandal, Ranga Reddy District, Telangana State with various luxurious amenities. The Appellant and Respondents entered into an unregistered Agreement of Sale (for short, the ‘Agreement’) dated 16.05.2017 wherein it was agreed that after the completion of construction the Respondents will purchase Flat No.901 consisting of 2355 sq. ft. of built up area in 9th floor in Block-1A (Stanley) in Appellant’s project “SMR Vinay Iconia”. In view of delay in handing over possession, Respondents filed complaint C.C.No.23 of 2022 before the State Commission. On 05.09.2022 the Appellant was proceeded ex-parte in the said proceedings as it failed to enter appearance. The State Commission’s order dated 13.03.2023 directed the Appellant to complete the construction of subject flat and to register the same in the name of Respondents and to hand over possession of the flat to them with Occupancy Certificate within 60 days; to pay monthly rent of Rs.10,000/- to the Respondents as per the Agreement from October 2019 till date of compliance of the first direction and to pay compensation of Rs.5 lakhs to the Respondents along with costs of Rs.50,000/-.

4.     The Appellant received the Impugned Order through registered post on 14.03.2023. The Respondents filed an execution petition bearing E.A.No.29 of 2023 before the State Commission and the notice of the same was received by the Appellant on 29.05.2023. Appellant submits that no notice was served upon the Appellant in the proceedings before the State Commission. However, they received the copy of impugned order on the very same address which is mentioned in the cause title. Appellant further submits that notice was sent only to one address although the Respondent had provided its Registered Office Address. It is further submitted by the Appellant that the impugned order at para 6 records that the notice of the complainant was unclaimed by the Appellant herein without recording any proof towards the successful delivery of the notice upon the Appellant.

5.     It is the case of the Appellant that there was no deficiency in service on its part and that it had a good case for defending the complaint filed under the Consumer Protection Act had the Appellant been given an opportunity for the same.

6.     Per contra, it was argued by the learned counsel for the Respondent that the Respondents who are husband and wife and working professionals in the private sector, and were desirous to purchase a home, were lured by the representations of the Appellant. Respondent booked an Apartment bearing Flat No. 901 admeasuring built up area of 2355 sq. ft inclusive of common area of 545 sq. ft. on 9 Floor in Block - 1A (Stanley) in Phase-II of the housing project known as SMR Vinay Iconia being developed by the Appellant for a total sale consideration of Rs.1,03,49,800/-. The Respondents paid Rs.46,00,000/- to the Appellant as initial payment in two tranches and subsequently the balance Rs.57,49,800/- was paid to the Appellant as per the agreed payment plan contained in the Agreement.

7.      The Respondents submit that they also paid Rs. 20,69,960/- to the Appellant from the Housing Loan availed from the State Bank of India. It is further submitted that till the date of filing of the consumer complaint before the State Commission, the Respondents had already paid interest amounting to Rs. 21,02,972/- which amount has now substantially increased as a result of further payment of EMIs to the bank and interest to private lenders.

8.      Respondents further submit that vide Clause 5 of the Agreement, the Appellant was contractually obligated to handover delivery of possession of the flat complete in all respect in accordance with law i.e., after obtaining Occupation Certificate/ Completion Certificate from the competent authority on or before 30.09.2019 with a grace period of 6 months, which expired on 31.03.2020. It is further contended that despite numerous requests and reminders through emails, WhatsApp messages and telephone calls, the Appellant failed to honour its commitment and contractual obligation of delivery of possession of the flat even after expiry of the grace period of 6 months beyond the agreed date of delivery of possession for no reason or fault attributable to the Respondents and that Appellant failed to execute the Sale Deed in favour of the Respondents.

9.     The Respondents therefore filed a Consumer Complaint under Section 47 of the Consumer Protection Act (CC No. 23 of 2022) before the State Commission. The notice issued to the Appellant was received back unclaimed and therefore, the Appellant was placed ex-parte in the proceedings. The State Commission found the Appellant guilty of deficiency in service and unfair trade practices through the impugned order.

10.    Based on the Appellant's submissions and the record, it is evident that no notice was served upon them during the pendency of the Consumer Complaint proceedings. The Appellant received only the final ex-parte order on 04.03.2023. Based on the records and documents filed by the Appellant, it is clear that the company's name was incorrectly written as "M.R. Builders Pvt. Ltd." instead of the correct name i.e. "M/s S.M.R Builders Pvt. Ltd." However, it is noted that the address on the envelope containing the final order was correct. Based on this record, the conclusion of the State Commission that the Appellant stood “served” appears to be erroneous and is liable to be set aside.

11.    The Appellant also relies upon the judgment passed by the Hon'ble Supreme Court in G.P. Srivastava Vs. R.K. Raizada & Ors., (2000) 3 Supreme Court Cases 54, wherein it was held that:-

“…The end of the justice can be met only if the appellant-defendant is allowed opportunity to prove his case within a reasonable time.”

12.    The State Commission had placed the Appellant ex parte in its proceedings without verifying whether the Appellant was served notice properly. From the record it is apparent that the notice could not be considered served on the Appellant as it was not addressed correctly or sent to the registered address. Consequently there was a denial of opportunity to the Appellant to represent its case before the State Commission.

13.   Based on the aforementioned discussions, and in view of the law laid down by the Hon’ble Supreme Court in G.P. Srivastava Vs. R.K. Raizada & Ors., (2000) 3 Supreme Court Cases 54 (supra) we find merit in the Appeal. The impugned order is set aside with the direction that the Appellant be provided an opportunity to present its case before the State Commission. The compliant remanded to the State Commission with its original number.

14.   At this stage we do not wish to express any view on the submissions of the parties. The State Commission is directed to adjudicate on the Complaint within four months from the date of this order. Parties are directed to appear before the State Commission on 11.09.2024.